Patry on Copyright Repair February 12, 2012

The prolific copyright authority William Patry wrote a book in 2009, Moral Panics and the Copyright Wars, which was a jeremiad against the current copyright system along with pleas for reform — but with no ideas about how to reform it. In response to criticism, Patry promised a follow-up work that would supply the “prescription out of the current situation.” That book would be titled How to Fix Copyright, and it would come out in the beginning of 2011.

So here we are in early 2012. The book is now out. But as a prescription for how to fix copyright, it’s a disappointment.

First of all, the reader has to wade through a lot of complaints about today’s copyright system, and other redundancies to Moral Panics, to get to any suggested solutions. Furthermore, Patry — apparently against the advice of his editors — refused to create a summary that neatly lists his ideas for reform. It is true that the book contains deeper ideas that it would be unfair to reduce to list items, and I’ll get to some of these. But first, here’s a list of succinctly statable copyright reform ideas in Patry’s book:

Reduce the term of copyright, because most works make money for their owners in the first few years after release, and after that they are best put into the public domain.

Make copyright registration mandatory instead of automatic, so that only those who really want protection for their works can get it.

Pass strong “orphan works” legislation, so that works whose owners won’t or can’t claim them can be enjoyed by all instead of being locked up in limbo.

Create comprehensive global rights registries, so that copyright users can instantly tell who owns what and license works appropriately.

Streamline the impenetrable maze of copyright licensing entities, rules and cross-border inconsistencies, so that it becomes easier to access content legally worldwide.

Create more statutory licenses, blanket licenses, and levies, to make copyright easier to administer and rights holder compensation easier to generate.

Price copyrighted works differently in different geographies to reflect economic realities, because people in economically challenged countries can’t possibly afford the prices for content that people in first-world countries pay.

Change copyright law to accommodate the new breed of digital artists whose tools necessarily involve copying pieces of copyrighted material.

Abolish legal constructs that impose or support “digital locks” on content, such as DMCA 1201, because they unfairly restrict technological development as well as Fair Use.

Go to any other established copyleft source — Lessig, Litman, Vaidhyanathan, Public Knowledge, etc. — and you’ll find much the same list. One exception, perhaps, is #7, geographically differentiated pricing (though this has little to do with copyright law per se). This has been shown to work well for physical products such as CDs: for example, Microsoft tried it for software and found its piracy rates in countries like China significantly reduced. But it’s hard to see how you make it work for pure digital content without lots of impractical cross-border enforcement implications (mandatory geolocation-based filtering, anyone?).

Now that we’ve gotten the Cliffs Notes version of this book out of the way, let’s get to the more novel and interesting ideas. First is Patry’s call for resetting goals of copyright reform so that they focus on the original objective of copyright. The original objective has been to maximize the works available to the public by providing creators incentives to create them. Changes to copyright law have often been enacted with the objective of reducing infringement and preserving revenue for copyright owners. That goal overlaps with the original one, but it’s not the same thing. He also says that future changes should be based on hard evidence that a proposed change will help achieve the objective rather than “blind faith” that it will do so. The evidence-vs.-faith argument makes great sense and is hard to argue with in principle.

Yet Patry doesn’t discuss how this could actually be implemented in the U.S.; he mainly provides the counterexample of the UK Digital Economy Bill and the lack of analysis that went into it when it was rammed through Parliament. The normal U.S. process in implementing a law that touches the business world is for lobbying groups to influence members of Congress — and in many cases, to even propose legislation drafts. In the case of copyright, Congress has a nonpartisan Copyright Office that is supposed to advise it on such matters. Patry would certainly know to what degree the Copyright Office could act as the source of the independent “impact statements” he seeks, since he worked there himself.

The Office does evaluate proposed changes to the law today, though in tightly controlled ways such as the triennial rulemaking on DMCA 1201. It does get lots of “input” from lobbyists and (as I know from my own experience) hungers for truly independent expertise. But the Office does not have the capacity to evaluate the economic, technological, and behavioral issues that come into play when judging the impact of proposed changes to the law. The European Commission’s Special Advisor program could be a model for what Patry has in mind: it hires outside experts to consult (for nominal fees) after they pass strict conflict-of-interest vetting processes.

But if the real goal of copyright is to maximize the amount of works available to the public, then it seems to me that the evidence is before us today and is so obvious as to require no studies at all. Sites like YouTube, Flickr, Scribd, and any number of free music sites offer exploding numbers of works that are supposedly covered under copyright (or some subset of copyright, such as Creative Commons licenses) and are there for promotional or non-pecuniary reasons. The numbers are huge even without the infringing material. And I suspect that most people who upload original material to these sites don’t think about copyright at all. How does this state of affairs require “reform”?

Patry discusses two other ideas that complicate his principles of reform. He insists that for copyright to do its job, content creators should be able to make livings from their work. So far, so good. He says that the current system favors major media companies, and the benefits do not “trickle down” to individual content creators. Also hard to argue with.

Yet once again, he doesn’t really describe how to fix this problem. Without explicitly tying them to the problem of compensation for individual content creators, he calls for more blanket or statutory licenses, in which licensing entities set monetary terms for content on behalf of large numbers of or “all” content creators respectively, and levies, which are taxes on hardware and blank media. All of these result in license fees that are somehow disbursed (after being reduced to cover “overhead”) to content creators through “magic black boxes” that are affiliated with or beholden to governments. Such entities — at least in their current states — are often far cries from independence and fact bases.

He also calls for global rights registries, which should make licensing and compensation fairer and more efficient. But such things would have to coexist with the collecting society (i.e. government-affiliated magic black box) system that we have today — or the latter would have to be drastically changed. This is a highly promising area of thought; unfortunately Patry doesn’t connect the dots far enough to pursue it.

The second idea in How to Fix Copyright that complicates Patry’s copyright reform principles is his foray into the dark and dangerous waters of dichotomy between “culturally important” content and “commercial trash.” Patry, a classically-trained clarinetist who commissions composers to write works for his instrument (don’t get me wrong: this is a good thing!), wants to preserve “cultural” content and has no interest in Hollywood products such as Batman 3, American Pie 4, or Miley Cyrus. In this, Patry parts company with his employer Google, whose lobbyist Derek Slater recently said, in justifying YouTube, that it’s wrong to judge content by “quality” because “one man’s trash is another man’s treasure.”

The original purpose of copyright runs into some trouble over this ambiguity: should copyright seek to maximize “what the people want” or works that meet some cultural or “quality” criteria? There must surely be some history behind this conundrum. Patry must know it from his background as law professor and textbook author, but he doesn’t share it here. If it’s the former, then it seems to me that the system is working just fine as is. The major media companies are expert in recognizing and satisfying popular demand, even if they do less and less work in creating the actual content. And for those who aren’t interested in big-media content, there’s YouTube, SoundCloud, Scribd, and so many other sources of content that doesn’t even cost anything.

But if the purpose of copyright is really to maximize “quality” or “cultural” works, then what about creating (and properly funding) a Department of Culture and a cabinet-level Secretary to run it — thereby putting the United States on par with most other developed countries? Patry stops short of recommending this, but he tends in that direction by calling for “direct funding [of] diverse cultural works” (i.e. patronage), expressing admiration for crowd-funding entities like Kickstarter, and generally appearing to see “marketing” as an egregious form of corporate mass hypnosis.

The final big idea in Patry’s book that merits discussion is his treatment of Fair Use. Patry spends an entire chapter singing the praises of Fair Use as a deliberately vague and conceptual construct. He takes an expansive view of Fair Use that is seemingly at odds with Larry Lessig’s position that it is a “wedge” between legal use and infringement that has been overloaded in the digital age. It’s also, as I’ve said many times, at odds with digital reality today.

Patry contrasts U.S. Fair Use with the Fair Dealing system used in the UK, Canada, and Australia, and with the similar scheme implemented through the European Union Copyright Directive. He calls those systems “closed list” systems because they codify uses of content that aren’t infringement (such as parody and criticism) rather than using the “open-ended” concepts found in U.S. law. He says, “Critics of the U.S. fair use doctrine point to the alleged ‘open-ended’ nature of fair use and argue that it lacks certainty.” Yep, it sure does. Fair Use’s lack of certainty makes it impracticable in the digital age as never before. Lessig has said that Fair Use is really just the right to hire a lawyer; Patry either doesn’t agree or doesn’t care.

This attitude that the copyright systems’ efficacy should be based on laws as written, and as executed by lawyers, governments, and government-sanctioned entities, pervades How to Fix Copyright. In other words, not only is the book short on implementation recommendations, but it also doesn’t look far enough outside the system to determine how to fix it. In his previous book, Patry had the temerity to suggest that “perhaps the answer to the machine is in the machine,” referring to Google’s use of fingerprint-based copyright filtering technology as an effective way of reducing piracy and monetizing content on YouTube. But in How to Fix Copyright, he spends an entire chapter recanting this statement. This chapter that contains so much rhetorical contortion (not to mention misunderstandings of technology and the market) that I bet it’s the result of Patry’s copyleft colleagues giving him grief about what he said last time.

And that’s the biggest problem I personally have with this book. The route to getting many content creators paid is neither through big-government “magic boxes” nor through laws that are for all intents and purposes unenforceable without technology or unless you can afford to both hire a good lawyer and wait until the litigation or negotiation is over. I don’t disagree that the copyright system needs reforming, but the original ideas for reform in this book have questionable practical value without plausible explanations of how they might actually work.

William Patry is a highly learned and respected figure in copyright with depth and breadth of interests that do him credit; his writing is articulate, well-researched, and persuasive. One can certainly read similar enumerations of copyleft ideas from other sources that are more shallow, strident, doctrinaire, and/or uninformed. But in the end — and unlike in copyright — the ideas matter more than the expression, and in How to Fix Copyright, the ideas underwhelm.

It appears to me that Prof. Patry has a tough time getting his priorities straight, because the vast majority of the proposed points are irreconcileable with the postulate that individual creators should be able to make a living from their work.

Just off the top of my head: the shorter the copyright term, the stronger the protections must be. It is simplicity itself – given a narrow window during which a creator can leverage her rights, she must be in a position to extract maximum value. That means she must be assured a situation where she is able to charge as much as the market will bear. In this context, statutory licences – for example – will serve to depress the price of the most valuable works, while at the same time providing a mostly negligible uplift to the less popular ones (in short: statutory licencing sets prices, generally somewhere midway between the high and low points for popular and unpopular works; popular works typically outperform unpopular ones by several factors of magnitude; the revenues brought by popular works will be reduced because the statutory price is lower than the market price would have been; at the same time unpopular works will be overpriced, but the creators involved won’t see much of an income boost because their ‘sales numbers’ won’t be very big).

The cross-border price differentiation is a sensible idea, but only if it is impossible to acquire cheaper ‘import’ works in places where prices are higher. That, however, runs contrary to abolishing TPMs and facilitation of worldwide content access.

(Aside: It should also be obvious that lack of TPMs will only worsen the problem of piracy. I wouldn’t be surprised if Patry makes no mention of enforcement.)

The reintroduction of registration requirements and the introduction of wide-sweeping orphan works legislation will of course make it more difficult for creators to assert their rights, but will facilitate easier money-making by those businesses that want to distribute content without paying creators. Yep, that’ll help creators get paid, no question.

Point 8. seems redundant, because a short copyright term will mean that most works people might want to reuse will soon pass into the public domain. What’s wrong with maintaining present licencing requirements until they do.

It seems to me that Patry has a wish list of things he’d like to see, but cannot bring himself to actually consider how all this is supposed to work. Maybe it’s for the better, because it can’t.

William Patry’s book has several great points. I have a great deal of respect for him since he is one of the marginal few who are fearless enough to answer the most basic question: why do we have copyright laws at all. He sets straight numerous myths following today’s mainstream justification about copyright that it is meant to balance the interests of authors with the interests of the people.

But because Patry’s book is based on erroneous conjectures, it consequently it concludes with extremely dangerous proposals. Patry thinks that copyright laws are not about giving creators the right to have power over how their works are utilized. In his view, the purpose of copyright laws is to ensure the most benefits to the public but only give authors the bare minimum to would encourage creativity.